Blurmany and Spain, you and me – the trade-off between convenience and privacy

Loss of privacy is the price we pay for the convenience of Internet and mobile technology. Different countries and different age groups accord varying degrees of value to the one and to the other. Germany and Spain have their own reasons for thinking about the balance more carefully than others. Is it worth doing without Street View because Honecker’s East Germany set neighbours to spy on each other? What, if any, is the relationship between the horrors of the Spanish Civil War, the so-called (and probably illusory) ‘right to be forgotten”, and the Google Spain case? Is there a difference in attitude between the generation above me (which lived through the war) and the one below (which happily surrenders its personal information in exchange for social benefits). What about me – what do I think?

I don’t purport to answer all these questions, but it is worth kicking them around.  If you can’t deduce what “Blurmany” is, the answer lies below.

The use of Google’s Street view in Germany came my way twice recently, once in connection with my own attempts to use it and once through a blog post by someone else which linked back to an old post of mine. The theme is the trade-off between loss of privacy and the benefits derived from data-sharing. The point about Street View is that its burden (the loss of privacy) is asynchronous with the benefit (which generally accrues to someone else).

First, why did I want to look at German Street View? My degree was in history, and I retain an interest in it. I like standing in the place where some historical event took place. In Oxford, where I live, you can still see the notch cut in a column in the University Church which supported the back of the platform on which Thomas Cranmer stood to hear that he would be burnt to death the following day; you can stand where he stood. Charles I escaped from Oxford by riding down the lane where I walk every day; Lawrence went that way also on his way to investigate a mound on Port Meadow (that’s T E Lawrence, not D H btw – they were interested in different kind of mounds). I can’t see a scene from a photograph without wanting to know exactly where it was taken.

A site called Colourising History (and there are other sites which are skilled in the art of colourising black-and-white pictures) does a good job, where possible, of identifying the location of its photographs, and I like to use Street View to see what the scene looks like now. The spot in Cherbourg where this one was taken, for example is easily found in its original black and white:


….and entirely recognisable in Street View:


A recent photograph on one of these sites showed a boat full of American soldiers crossing the Rhine between two named towns. Street View did not work, which led me to the discovery that Google gave up trying to collect and use German data in 2011, notwithstanding a court ruling that it was legal for them to do so. They now collect data only in support of their mapping applications. Privacy has trumped convenience – my convenience, in this case, but someone else’s privacy.

BlurmanyAn article by Dan Neuhaus called Watching the Watchers: Germany’s commitment to privacy, talks about this subject and gives a summary of the 2009 German privacy reforms. The article introduces a term which is new to me – Blurmany, reflecting the very large amount of data which must be obscured to comply strictly with the German rules (the map reproduced here comes from that article). The article refers back to a blog post of mine from April 2010 called Germany focuses on data protection and privacy which came at the point when Google had just won the right to use Street View but before they decided not to bother. The article quotes a passage of mine about the “unconscious trade-off” between the erosion of privacy and a benefit: I said:

“We consent to the erosion of our privacy continually, usually as a result of an unconscious trade-off between that erosion and some benefit – if we choose to carry a mobile phone, then our location is traceable, but the benefit outweighs the downside. The same is true of many other web or GPS-based functions. The difference between them and Street View is that the latter is disconnected from our own choice – we may choose not to use Street View but we have little control over its usefulness to those who want to eye up our houses for burglarious purposes, or over the risk that it happens to catch us coming out of a massage parlour, as happened to one man”

This trade-off between privacy and other benefits works the other way as well – your right to privacy may be my barrier to legitimate investigations into you and your past. The case of Google Spain has received much attention lately, with privacy enthusiasts hailing a judgment of the Court of Justice of the European Union which required Google to remove links to stories of the applicant’s otherwise long-forgotten personal history. You can crow all you like that this enshrines the “right to be forgotten” (although you may want to look at this article from Seyfarth Shaw before saying that), but this apparent advantage brings with it the probability that all sorts of crooks and shysters will use the ruling to whitewash their pasts. Perhaps they are seeking your vote, your purchasing power, a business partnership, or your hand in marriage – is it really a benefit that you cannot read about things which happened in the past, some of which may amount to more than youthful indiscretions?

Germany’s history before and during the war, and East Germany’s post-war history, encourage a particular regard for the protection of private information. As it happens, Spain is also a particularly interesting country in this context because of the bloody civil war which took place in the 1930s and the dictatorship which followed. An interesting article in the New Yorker called Google Search Results: Dictator not found, refers to the pacto de olvido, the unspoken agreement to leave the past behind. In a country where mass graves are still being found, and where the civil war’s winner had decades to rewrite history, this is not necessarily a universal benefit.

To come back to my point, any Internet user makes a pact, consciously or unconsciously, that trades privacy for convenience. This is as true for governments as it is for individuals – it is said that parts of the Russian government have gone back to using typewriters for this very reason, and the recent arrest of Chinese hackers shows how flimsy is our security even at a state level.

At a personal level, I for one have decided (and it is a conscious decision) that I value the convenience and will take my chance as to the privacy. My iPhone “knows” where I am and (as I discovered recently when my wife accidentally drove off with it) shows me where it is. I must assume that anyone with the interest can use it to find me and see where I have been (which thoughtful Mr Google tracks for me – and them). The security considerations are not to be ignored – here is a new article from Symantec which explains what can happen when your iPhone, iPad or Mac falls into the wrong hands. Here is one called Mobile Device Data in a Big Data World by Lee Reiber of AccessData, which came to hand as I was about to publish this; the article is about the investigation benefits of using AccessData’s forensic tools to recover data for eDiscovery and for detecting crime and terrorism; it is no bad thing to be reminded, as a virtuous citizen, that all the information which Lee Reiber mentions adds up to your life story for the period for which you used the device.

In my own case, the trade-off goes beyond knowing that all my devices (I usually carry at least five) are tracking almost everything about me. In addition, I choose to write about where I go and what I do, and anyone who reads my blogs and follows me on Twitter can find anything there is to know (which is not much beyond the confines of my subject, my desk, my dog and a lot of airport lounges). I also believe that if I hope to encourage people to accept my opinions then they are entitled to know something about me. The corollary in business development terms is a kind of brand recognition which wins me work.

There is a trade at a more subliminal level as well. I value enormously the information I get for free out of Google. I entirely buy the maxim that if you are not the customer then you are the product of a company whose “Do no evil” motto was a hollow mockery from the start. I am aware that everyone, from dull little civil servants to shyster corporations who want to sell me their crap, is collecting data about me. I would pay handsomely in cash to have the benefits without the privacy implications, but that business model is not on offer.

Many factors influence one’s view of the relative importance of privacy and convenience. The people of Germany and Spain have their own reasons derived from relatively recent history for valuing privacy, but many see the countervailing arguments to the effect that convenience is not the only reason for preserving openness – privacy cloaks conduct we might want to know about and makes it harder to hold authority to account. The older generation in any jurisdiction are more likely to keep their information to themselves, but that may be more because they are less interested in the opportunities offered by modern communications technology and not for historical reasons.

This is all peripheral to my primary interest, which is the conflict between the US attachment to openness, at least in a discovery context, and the data protection concerns of other countries. It provides food for thought, however, for those in the US who see the restrictions of European and other regions as being merely obstructive.

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Data privacy, Data Protection, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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